Yingling v. Fercu CA2/7 ( 2022 )

Filed 8/12/22 Yingling v. Fercu CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KIMLAI YINGLING, B308330
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. LS029357)
ADRIAN FERCU,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael R. Amerian, Judge. Affirmed.
Law Offices of Michael Labrum and Michael Labrum for
Defendant and Appellant.
Beaumont Tashjian, Tara M. Radley and Kumar S. Raja for
Plaintiff and Respondent.
INTRODUCTION
In 2017 Kimali Yingling obtained a civil harassment
restraining order against her neighbor in a condominium
complex, Adrian Fercu. Three years later, Yingling sought to
renew the restraining order. The trial court granted the request,
and Fercu appealed.
We conclude, contrary to Fercu’s assertions, the trial court
did not (1) err in precluding Fercu from introducing evidence he
claimed would undermine the basis of the original restraining
order or (2) abuse its discretion in finding there was a reasonable
likelihood Fercu would harass Yingling in the future. Therefore,
we affirm the trial court’s order renewing the restraining order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Yingling Obtains a Restraining Order Against Fercu
Yingling and Fercu lived in different units near each other
in a condominium cooperative managed by a board of directors.
Since at least 2017 Yingling has served on the cooperative’s board
and regularly attended board meetings. Fercu, though not a
member of the board, attended board meetings in 2017.
In April 2017 Yingling filed a request for a civil harassment
restraining order against Fercu. Yingling alleged Fercu had
harassed her in various ways, including threatening her in text
messages, slandering her in front of vendors and other residents,
posting defamatory “signs” about her, and “displaying forceful
and intimidating behavior” that caused her “to feel fear and
anxiety in his presence.” She stated: “His presence is unsettling
to the point where I’m afraid to leave my unit for fear he will be
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waiting for me. I sense that he is extremely unpredictable.”
Yingling asked for a temporary restraining order without giving
Fercu notice because she was afraid “violence would reoccur” if
she gave notice and she believed that, if she gave notice, Fercu
would “demonstrate unpredictable [and] irrational behavior and
possibly retaliate.”
In April 2017 the superior court issued a temporary
restraining order enjoining Fercu from contacting, harassing,
intimidating, or threatening Yingling. The court also ordered
Fercu to stay at least 100 yards from Yingling, her home,
workplace, and vehicle, and at least 20 feet away from her at
board meetings.
In May 2017 the superior court held a hearing on Yingling’s
request for a permanent restraining order. Fercu did not attend
the hearing, although he was served with notice of the hearing.
The trial court granted Yingling’s request and issued a
permanent restraining order enjoining until May 2020 the same
conduct the temporary restraining had enjoined. Fercu did not
appeal from the order granting Yingling’s request for a
restraining order.
B. The Trial Court Renews the Restraining Order
In May 2020 Yingling filed a timely request to renew the
restraining order. Yingling stated that Fercu “still . . . resides in
close proximity to me” and that the “current restraining order
against Adrien Fercu is the only thing that has caused him to
keep his distance from me over the past few years and to allow
me to continue to live my life.” She stated that, “[b]efore the
permanent restraining order was issued, Fercu was stalking me
at my apartment, leaving threatening/vulgar notes on my
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apartment door and carport and screaming obscenities at me in
the common areas” and that she feared “he will resume this
conduct if the order is not renewed.” She also stated: “I am still
president of my cooperative’s Board of Directors and remain very
active in the community. I need to be able to freely traverse the
cooperative’s property, communicate with residents and vendors,
conduct board meetings and oversee management of the
cooperative. Fercu is still a shareholder and resident of the
cooperative and resides in close proximity to me (our units are
located within the same complex). A renewed restraining order is
necessary to keep Fercu from continuing to harass me and to
allow me to be present in my community without his interference,
threats and stalking.”
In July 2020 the trial court (a different judge) held a
hearing on the request to renew the restraining order. At the
hearing, counsel for Yingling asked the court to renew the
restraining order because “the circumstances regarding the
parties’ living conditions” had not changed. Counsel for Yingling
also argued Yingling is “still the board president. She still needs
to conduct board meetings. She still needs to be able to walk the
property” and “to be able to do that free of Mr. Fercu’s
harassment.” Yingling did not submit any evidence of new
harassment by Fercu.
Fercu attempted to challenge the validity of the original
restraining order. He testified that Yingling “slapped [him] in
the face” in April 2017 and that he had not been served with the
original petition for a restraining order. The trial court, however,
precluded Fercu from introducing evidence he claimed would
show that the court in 2017 should not have issued the
restraining order. The trial court said it did not want “to
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relitigate and rehear the facts of the hearing that gave rise to the
restraining order three years ago. So it sounds like you want to
retry the case. I’m not doing that.” The trial court stated that
“all of this needed to be dealt with three years ago. It’s too late
for me to look back at why the restraining order was issued
initially.” Fercu stated, “Okay.”
The trial court explained it was “focused on whether or not
there’s a reasonable likelihood of future harassment” and asked
Fercu to address whether he and Yingling still lived in the same
complex and attended board meetings in person. Fercu
acknowledged that he still lived near Yingling, but stressed that,
since the court issued the restraining order, there had been no
new incidents of harassment. The trial court found that there
was “a reasonable likelihood of future harassment” and that
there was “good cause to renew the restraining order” because
both parties “still live in the same location and there’s no
indication that either side’s going to be moving out any time
soon.”
Fercu argued that he never harassed Yingling and that the
court was violating his rights. The trial court stated that “the
request to renew doesn’t have me go back and look at the reason
. . . the original restraining order [was] issued. It doesn’t require
there to be any new activity that is harassing. What I have to
look at is whether there’s a reasonable likelihood of future
harassment.” The trial court also stated: “The fact that you’re
still living at the same complex leads me to conclude that there
is. So, I understand that you may not be happy with my decision,
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but that’s my decision.” The trial court renewed the restraining
order for five years. Fercu filed a timely notice of appeal.
DISCUSSION
Fercu argues the trial court erred in relying exclusively “on
the fact that the parties resided in the same condominium
complex” and in refusing to consider “evidence mitigating the
initial allegations” in Yingling’s 2017 petition for a restraining
order. Neither argument has merit.
A. Applicable Law and Standard of Review
Code of Civil Procedure section 527.6 governs civil
harassment restraining orders.1 A court may issue a restraining
order if the petitioner shows “by clear and convincing evidence
that unlawful harassment exists.” (§ 527.6, subd. (i).) Section
527.6 defines “harassment” as “unlawful violence, a credible
threat of violence, or a knowing and willful course of conduct
directed at a specific person that seriously alarms, annoys, or
harasses the person, and that serves no legitimate purpose.”
(§ 527.6, subd. (b)(3).) The court can issue a restraining order for
up to five years. (§ 527.6, subd. (j)(1).) We review an order
granting a request to renew a restraining order for an abuse of
discretion. (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389,
396; Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90.)
1 Statutory references are to the Code of Civil Procedure.
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B. The Trial Court Did Not Err in Relying on the Fact
That Yingling and Fercu Still Lived Near Each Other
Fercu argues that the “trial court’s reliance on the fact that
the parties resided in the same condominium complex is
insufficient evidence to support that granting of the request to
renew the restraining order” and that the court erred by
“automatically grant[ing] the renewal request without any
further showing by” Yingling.
The trial court did not abuse its discretion in renewing the
restraining order. A restraining order “may be renewed, upon
the request of a party, for a duration of no more than five
additional years, without a showing of any further harassment
since the issuance of the original order . . . .” (§ 527.6,
subd. (j)(1).)2 “A restraining order should be renewed only when
the trial court finds a reasonable probability that the defendant's
wrongful acts would be repeated in the future.” (Cooper v.
Bettinger, supra, 242 Cal.App.4th at p. 90; see Harris v.
Stampolis (2016) 248 Cal.App.4th 484, 495.) “[R]enewal under
section 527.6, subdivision (j)(1), is not automatic; instead the trial
court has discretion to renew the restraining order and the
duration of the restraining order.” (Cooper, at p. 89.)
Fercu does not argue the court erred in considering how
close the parties lived to each other. Section 526.7 does not limit
the factors a court can consider in deciding whether to renew a
restraining order, instead authorizing the court to consider “any
evidence showing a likelihood of future harassment, including
evidence of conduct that might not itself constitute harassment.”
(Harris v. Stampolis, supra, 248 Cal.App.4th at p. 501; see
§ 527.6, subd. (i) [at the hearing on a petition for a restraining
2 Fercu does not argue the five-year renewal was too long.
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order, “the judge shall receive any testimony that is relevant, and
may make an independent inquiry”].) Fercu argues only that the
“mere fact that the parties live in the same condominium complex
is not a reasonably sufficient basis for the finding that the
restrained activity is likely to recur.”
Fercu provides no authority for his assertion that evidence
a restrained party and a protected party continue to live in the
same vicinity is insufficient to support an order renewing a
restraining order. Indeed, the law is to the contrary: To renew a
restraining order, the protected party need not present any
evidence at all. (See Cooper v. Bettinger, supra, 242 Cal.App.4th
at p. 91 [section 527.6 “grants the trial court discretion to renew a
restraining order based on its review of the record of the past
harassment underlying the original issuance of the restraining
order and without the protected party presenting any new
evidence”].)
Moreover, additional evidence supported the trial court’s
order. Yingling stated not only that Fercu still lived near her,
but also that she was still president of the cooperative board and
that her duties required her to interact with other residents and
supervise the business of the cooperative. She stated the
restraining order was the only reason she was able to fulfill her
duties as president. For his part, Fercu testified he had a right to
attend board meetings, thus creating additional opportunities for
him to encounter and harass Yingling. (See R.D. v. P.M. (2011)
202 Cal.App.4th 181, 190 [“Behavior that may not alone
constitute an intentionally harassing course of conduct logically
still might show an intention to resume or continue an already-
established course of harassing conduct.”].) Fercu also denied he
had ever done anything wrong. He testified he “didn’t do
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anything to this lady” and said, “What evidence? I didn’t do
anything, your honor, please.” The trial court could reasonably
infer from this testimony Fercu lacked remorse for his past
harassment of Yingling, or even understood his past conduct
constituted harassment, an inference that further supported
renewing the restraining order. (See In re L.O. (2021)
67 Cal.App.5th 227, 240 [denial of past conduct is evidence of a
continuing risk]; In re Marriage of Emilie D.L.M. & Carlos C.
(2021) 64 Cal.App.5th 876, 882 [“‘[o]ne cannot correct a problem
one fails to acknowledge’”].)
C. The Trial Court Did Not Err in Prohibiting Fercu
from Introducing Evidence Challenging the Validity
of the Original Restraining Order
Fercu also contends the trial court erred in precluding him
from introducing evidence challenging the court’s decision in
2017 to issue a restraining order. According to Fercu, by
precluding him in 2020 from introducing evidence that would
show his conduct in 2017 did not justify a restraining order, the
court violated his due process rights and was unable “to consider
all surrounding circumstances of the case to determine the
likelihood of future harm.”
The trial court did not err in denying Fercu’s attempts to
challenge the validity of the original restraining order. “[W]here
a protected party seeks a renewal of a restraining order and the
restrained party has either failed to appeal . . . or has lost on
appeal, the restrained party cannot challenge the findings and
evidence underlying that original order [or] the validity of that
order.” (Cooper v. Bettinger, supra, 242 Cal.App.4th at p. 92.)
Fercu did not appeal from the original restraining order. Thus,
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as Fercu concedes, he cannot “challenge the evidence, findings,
and validity of the original restraining order.” Yet, that is what
Fercu argues the trial court should have allowed him to do. The
trial court properly precluded Fercu from presenting evidence
and testimony that he claimed undermined the original
restraining order.
Fercu also argues the court should have considered that
“the original request for a restraining order did not allege
violence.” But Yingling did not have to allege or prove violence to
obtain a restraining order; she had to allege and prove
harassment, which can be nonviolent. (See § 527.6, subd. (b)(3).)
In any event, there was evidence Fercu’s pre-restraining order
conduct was violent. As discussed, Yingling stated in support of
her request for the original restraining order that Fercu “used or
threatened to use violence against” her. After issuing the
original restraining order, the court ordered the sheriff to serve
the order without charge because the order was “based on
unlawful violence, a credible threat of violence, or stalking.”
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DISPOSITION
The order renewing the restraining order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
WISE, J.*
* Judge of the Alameda Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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